Suzanne L. Mcrobbie, Move Over Work Productit's Time for Some Real Discovery: a Call for a Cost-allocating Amendment to Rule 26(b)3

• Jurisdiction: United States,Federal
• Publication year: 2005
• Citation: Vol. 54 No. 3

COMMENTS

MOVE OVER WORK PRODUCT-IT'S TIME FOR SOME REAL DISCOVERY: A CALL FOR A COST-ALLOCATING AMENDMENT TO RULE 26(b)3†

INTRODUCTION

Imagine you are a commercial farmer and you recently lost your entire year's worth of crops because the product you thought was protecting your crops was in fact killing them.¹Imagine further that the manufacturer of that product recently tested soil on your farm, but because of the work product doctrine,²the manufacturer is able to withhold those test results even though they are highly relevant to your case. This unfortunate event is common in civil litigation today, especially in document-intensive litigation.³

In the world of civil litigation, work product affects all attorneys no matter the side they represent. This device enables the opportunistic attorney to hide hundreds or even thousands of documents that may be harmful or damaging to his or her case.⁴Conversely, those attorneys who constantly battle their opposition in discovery hearings, trying desperately to obtain information that could potentially help prove their case, loathe work product immunity.⁵As one commentator has observed, "'[w]ork product' is the dirty little secret shared by many litigators. The words need only be whispered before discovery is stopped dead in its tracks."⁶

In addition, the work product doctrine favors repeat or institutional players over individual or one-time players.⁷It allows lawyers to bill hour after hour as they spend months and sometimes years in pretrial hearings arguing about what evidence will be immune from discovery. Many scholars have identified this problem,⁸and some have suggested interesting solutions.⁹Nevertheless, the work product doctrine continues to stir up discussion, disgust, and delight among the different members of the legal community.¹⁰

Work product immunity presents a fundamental paradox in our civil litigation system.¹¹The adversarial model invokes visions of battle and zealous client representation, with each attorney independently preparing his or her own path to victory. However, with the creation of the Federal Rules of Civil Procedure (Federal Rules) and modern discovery, the American system has embraced and protected a progressive and broad discovery system designed to search for and obtain the truth.¹²Discovery works to correct flaws in the former model¹³via mandatory cooperation and information exchanges.¹⁴

Despite its good intentions, the work product doctrine strays from this ideal and inspires secrecy, surprise, and overzealous representation.¹⁵

Many commentators have argued for the abolition of certain facets of work product immunity, leaving most aspects of the doctrine intact.¹⁶This Comment proposes to eliminate ordinary and fact work product immunity and to allow only opinion work product to remain intact. This Comment also prescribes a new cost-shifting or cost-sharing scheme to help eliminate the free-rider concerns surrounding pretrial discovery.¹⁷

Part I begins with a historical glance at the work product doctrine and work product immunity, including the theoretical reasons behind their existence and the policy arguments attempting to explain its tensions with broad discovery. Next, Part II compares the Supreme Court's landmark decision impacting work product immunity with Federal Rule 26(b)(3). Part III dissects the work product supporters' arguments and concerns while addressing the practical applications of the work product doctrine. This Part also examines the different theories and policy arguments surrounding the successes and failures of the doctrine in litigation. Part IV presents a case study where defense lawyers used the work product doctrine to suppress vital information from the plaintiffs. Part V introduces an amendment which would eliminate from discovery all fact and ordinary work product immunities.¹⁸The proposed system includes a cost-shifting scheme, which essentially eliminates the significant transaction costs and free-rider concerns involved with discovering fact and ordinary work product. Finally, Part VI expands and critiques the proposed system and its application in the discovery system.

I. BACKGROUND ON THE FEDERAL RULES OF CIVIL PROCEDURE

A. The Theory of Broad Discovery

Broad discovery became available to all civil litigants with the adoption of the Federal Rules in 1938.¹⁹The intended purpose of the Federal Rules is to "secure the just, speedy, and inexpensive determination of every action."²⁰To further this goal, the Court adopted and expanded wide-ranging pretrial discovery rules through several amendments, with the most recent amendment added in December 2003.²¹The Federal Rules were created in response to an increasing sense of frustration with the "sporting theory of justice" at the time.²²That system, employed by much of the legal profession, often rewarded oratorical skill over the merits of a case.²³Recognizing this problem, the Supreme Court declared in 1947 that "[m]utual knowledge of all the relevant facts gathered by both parties is essential to proper litigation."²⁴To avoid the games, secrets, and surprises that attorneys utilized in the past, the discovery devices aimed to foster negotiations and information exchange, while still emphasizing the merits of a case.²⁵

B. Background on Rule 26

Federal Rules 26 through 37 outline and explain the discovery devices that litigants may use during trial preparation.²⁶Rule 26 presents the range of provisions that define the scope and the limitations of the discovery devices.²⁷

In 1970, the Supreme Court promulgated Rule 26(b) as part of a strategic effort to merge the standards regulating the scope of pretrial discovery.²⁸Rule

26(b)(1) defines the broad scope of discovery.²⁹It also provides that discoverable information need not be admissible at trial, so long as the information is "reasonably calculated to lead to the discovery of admissible evidence."³⁰While Rule 26(b)(1) provides for broad discovery, the scope of Rule 26(b)(2) grants the court discretion to limit and alter the boundaries of pretrial discovery.³¹

Moreover, a court may also regulate the use of discovery devices when and if the court finds: (1) the discovery is repetitive or unduly burdensome; (2) the party seeking discovery has wasted ample opportunities to obtain the information by other means; or (3) the burden of the proposed discovery outweighs its benefits.³²Rule 26(b)(3), codified in 1970, limits the disclosure of work product to documents or things "prepared in anticipation of litigation" by a party, its attorney, or its representative agent as defined by the rule.³³

C. The Work Product Doctrine

The work product doctrine provides that a party wishing to obtain information considered "work product" may do so only after meeting two

Id. requirements.³⁴First, the party must make a showing of "substantial need" for the requested information.³⁵Second, the party must establish its inability to obtain the information's equivalent without "undue hardship."³⁶Additionally, any party's materials that are labeled "mental impressions" or "opinion" work product are absolutely immune from discovery unless that party waives such immunity.³⁷

A broad discovery system that allows each party equal access to relevant evidence fundamentally improves judicial administration by reducing the inherent unfairness in an otherwise unequal system.³⁸Broad discovery puts less emphasis on the quality of the representation³⁹and more emphasis on exchanging information in a joint search for the truth.⁴⁰An open discovery system minimizes surprises in trial, narrows the scope of the litigation, exposes bogus defenses, resolves potential issues, and encourages settlement.⁴¹

II. THE SUPREME COURT AND RULE 26(B)(3)

A. Hickman v. Taylor

While the work product doctrine aims to "protect[] trial preparation materials from discovery,"⁴²the unclear scope of this doctrine results in frequent litigation.⁴³In Hickman v. Taylor,⁴⁴for example, the Supreme Court preserved a "zone of privacy within which attorneys could work" without interference from opposing counsel.⁴⁵In Hickman, defense counsel collected written and oral statements from numerous witnesses in preparation for potential litigation.⁴⁶Counsel for the plaintiff then requested copies of the written statements and detailed information regarding the oral statements to prepare for later questioning and examining of those witnesses.⁴⁷

Classifying the described material as "work product," the Supreme Court held that the information was undiscoverable because the plaintiff failed to make the proper showing "of the necessity for the production of any of this material or any demonstration that denial of production would cause undue hardship or injustice."⁴⁸The Court explained that creating a rule compelling attorneys to reveal materials they skillfully gathered in anticipation of litigation would yield "[i]nefficiency, unfairness and sharp practices."⁴⁹The Court further explained that "[p]roper preparation of a client's case demands that [the lawyer] assemble information, sift . . . the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference."⁵⁰

In his concurring opinion, Justice Jackson warned that permitting discovery in Hickman would severely damage the adversary system: "Discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary."⁵¹Allowing such discovery, Justice Jackson opined, would be "demoralizing to the Bar,"⁵²and prove ultimately detrimental to the "welfare and tone of the legal profession."⁵³

B. The Policies Behind the Hickman Decision

1. Preserving Zealous Representation and Avoiding Unfairness and

Inefficiency

The Hickman Court presented several policy-based justifications for protecting work product. First, the Court noted that "[m]uch of what is now put down in writing would remain unwritten" without work...